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PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined defendant property owner’s motion for summary judgment in this stairway slip and fall case was properly denied. There was a conflict between the plaintiff’s description of the defect and the area where she fell (included in the deposition testimony submitted by the defendant) and the defendant’s evidence of the location of the defect:

In moving for summary judgment, the defendant was obligated to come forward with evidence establishing its prima facie entitlement to judgment as a matter of law by eliminating all material issues of fact as to its potential liability… . However, in view of the conflicting accounts submitted by the defendant as to the location of the defect which allegedly caused the plaintiff’s fall, the defendant failed to sustain its prima facie burden on the motion. Accordingly, denial of the motion was required, without regard to the adequacy of the plaintiff’s submissions in opposition … . Tavarez v Pistilli Assoc. III, LLC, 2018 NY Slip Op 03727, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, STAIRWAYS, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))/SLIP AND FALL (STAIRWAYS, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))

SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the defect in the stairway, which was small and was not located in the walking surface of the stairway, was trivial and not actionable:

… [T]he defendant’s expert reviewed the transcript of the plaintiff’s examination pursuant to General Municipal Law § 50-h, together with color photographs identified and marked by the plaintiff during that examination, which depicted the exact location of the alleged defect. The expert also conducted an inspection of the accident location. Based on his review and inspection, the expert averred that the alleged defect was located three inches from the left stairway wall, directly underneath the handrail. Moreover, the height differential between the nosing and the stair measured one-half inch at its greatest depth. Considering the location of the alleged defect, which was not on a walking surface of the stairway … , together with all other relevant surrounding circumstances, the defendant established, prima facie, that the alleged defect was trivial … . Stanley v New York City Hous. Auth., 2018 NY Slip Op 03726, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/SLIP AND FALL (STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/TRIVIAL DEFECTS (SLIP AND FALL, STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))

PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff assumed the risk of injury in a slam dunk competition at basketball camp:

Under the doctrine of primary assumption of risk, “[i]f the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be” … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … . Osmond v Hofstra Univ., 2018 NY Slip Op 03693, Second Dept 5-23-18

​NEGLIGENCE (ASSUMPTION OF THE RISK, PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))/ASSUMPTION OF THE RISK (PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))/BASKETBALL (NEGLIGENCE, ASSUMPTION OF THE RISK, PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))

MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).

The Second Department determined a merchandise rack in the aisle of defendant store was open and obvious and not inherently dangerous:

[Plaintiff] commenced this action … to recover damages for personal injuries she allegedly sustained when she fell at the defendants’ department store in Yonkers, while attempting to walk past a merchandise rack situated in one of the aisles. …

“A landowner has a duty to maintain his or her premises in a reasonably safe manner”… . “However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including the decedent’s deposition testimony, demonstrating that the merchandise rack in the aisle was both open and obvious and that it was not inherently dangerous … . Nannariello v Kohl’s Dept. Stores, Inc., 2018 NY Slip Op 03689, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))/SLIP AND FALL (MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL,  MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))

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ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim in this fire truck traffic accident case was properly denied. The accident report did not alert the city to the essential facts of the action, the motion was not timely made, and the excuse, law office failure, was insufficient:

The police accident report and the letter from petitioner’s counsel  … were inadequate to provide the City with actual knowledge of the facts constituting the claim against it. These documents failed to alert the City to the petitioner’s claim that she had been seriously injured as a result of the motor vehicle accident … . … Furthermore, the notice of claim, served upon the City almost 2 months after the 90-day statutory period had expired, was served too late to provide the City with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90-day statutory period had expired … . …

The petitioner’s delay in serving the notice of claim upon the City was the result of law office failure, which is not a sufficient excuse … . The petitioner proffered no excuse for the delay between the time the City disallowed the claim and the commencement of this proceeding … . In addition, the petitioner presented no “evidence or plausible argument” that her delay in serving a notice of claim did not substantially prejudice the City in defending against the petitioner’s claim on the merits … . Matter of Naar v City of New York, 2018 NY Slip Op 03683, Second Dept 5-23-18

​NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

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SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT).

The Second Department determined that Supreme Court used the wrong criteria for analyzing whether plaintiffs’ motion for leave to file a late notice of claim should have been granted. Plaintiffs’ child was seriously injured in a game at school which was supervised by teachers. In 2016 the Court of Appeals (Matter of Newcomb) held that a plaintiff must make an initial showing that the school would not be prejudiced by a late notice, then the school must come forward with evidence it would be prejudiced. Supreme Court had analyzed the criteria under the existing law at the time, which was changed by Matter of Newcomb. The Second Department found, under the Matter of Newcomb criteria, plaintiffs had presented sufficient proof of a lack of prejudice to shift the burden to the school. The matter was remitted for analysis under the current law:

The plaintiffs submitted an affidavit from the infant plaintiff’s father in which he averred that he received a call from school personnel informing him about his child’s injury and requesting his presence at the school. When the father arrived at the school minutes later, he observed an assistant principal, two security guards, the school nurse, and New York City Fire Department personnel attending to the situation and the injuries of his daughter. At that time, the infant plaintiff’s father was informed that his daughter was playing a game with other children wherein they were jumping on each other’s backs. He also learned that this activity occurred under the supervision of three or four teachers, two of whom were named in his affidavit. The infant plaintiff was transported by ambulance from the school to the hospital. The infant plaintiff allegedly fractured the tibia and fibula of her right leg, and underwent surgery as a result of her injuries. Given the evidence of the number of school personnel attending to the situation, the reporting of the incident to the infant plaintiff’s father, and the seriousness of the alleged injuries, the plaintiffs argued that a number of reports would likely have been prepared, and that such reports were in the possession of the defendants. Under certain circumstances, this Court has recognized that the “existence of reports in [a defendant’s] own files concerning . . . facts and circumstances'”of an incident may be “the functional equivalent of an investigation” … . …

Given that Matter of Newcomb was decided during the pendency of this appeal, and since the Supreme Court relied upon this Court’s prior authority, which had placed the sole burden on the plaintiffs to show that the defendants were not substantially prejudiced by the delay in filing, the defendants did not have an opportunity to submit evidence to make their particularized evidentiary showing in the manner set forth in Matter of Newcomb. The court, therefore, did not have the opportunity to weigh such evidence in consideration of the plaintiffs’ motion. N.F. v City of New York, 2018 NY Slip Op 03663, Second Dept 5-23-18

​EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, NOTICE OF CLAIM, SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, NEGLIGENCE SUPERVISION, SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM,  SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, NEGLIGENCE SUPERVISION, SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))

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ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant school district’s motion to set aside the verdict for legal insufficiency should have been granted. Plaintiff assistant principal sued the district after she was injured breaking up a fight between students. She had previously been injured by a student and had complained that more security was needed on the floor where she was hurt. The Second Department explained that plaintiff could not recover unless a special relationship with the school district had been proven:

On a legal sufficiency challenge, whether made pursuant to CPLR 4401 at the close of the plaintiffs’ case or pursuant to CPLR 4404(a) to set aside the jury verdict, the relevant inquiry is whether there is any rational process by which the trier of fact could base a finding in favor of the nonmoving party … .

Absent the existence of a special relationship between the defendants and the injured plaintiff, liability may not be imposed on the defendants for the breach of a duty owed generally to persons in the school system and members of the public … . A special relationship can be formed, inter alia, if the defendants voluntarily assumed a special duty to the injured plaintiff upon which she justifiably relied … . In order to succeed on this theory, the plaintiffs were required to establish four elements: (1) an assumption by the defendants, through promises or actions, of an affirmative duty to act on behalf of the injured plaintiff; (2) knowledge on the part of defendants’ agents that inaction could lead to harm; (3) some form of direct contact between the defendants’ agents and the injured plaintiff; and (4) the injured plaintiff’s justifiable reliance on the defendants’ affirmative undertaking … . Morgan-Word v New York City Dept. of Educ., 2018 NY Slip Op 03673, Second Dept 5-23-18

​EDUCATION-SCHOOL LAW (ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, MUNICIPAL LAW, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (EDUCATION-SCHOOL LAW, NEGLIGENCE, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, NEGLIGENCE, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (SET ASIDE THE VERDICT, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/VERDICT, MOTION TO SET ASIDE  (ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4404 (SET ASIDE VERDICT, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT).

The Second Department determined claimant’s wrongful death action was properly dismissed because claimant failed to comply with the notice requirements of the Court of Claims Act and commenced the claim before the appointment of an administrator of her son’s estate:

” [B]ecause suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed'”… . Court of Claims Act § 10(3) provides that a claim to recover damages for personal injuries caused by the negligence of a state employee must be filed within 90 days after the accrual of such claim, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim must be filed within two years after the accrual of the claim … . Court of Claims Act § 10(2) provides that a wrongful death claim must be filed within 90 days after the appointment of an executor or administrator of a decedent, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim must be filed within two years after the death of the decedent … .

Here, neither the claim nor the notice of intention to file a claim was filed within 90 days after the accrual of the personal injury claim, and thus, the personal injury claim was not timely. Moreover, since the claim was commenced prior to the claimant’s appointment as administrator of her son’s estate, she failed to comply with the requirements for commencing a wrongful death claim … . The failures to strictly comply with Court of Claims Act § 10(2) and (3) were jurisdictional defects compelling dismissal of the claim … . Kiesow v State of New York, 2018 NY Slip Op 03670, Second Dept 5-23-18

​COURT OF CLAIMS (FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/NOTICE OF INTENT (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/WRONGFUL DEATH COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/NEGLIGENCE (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))/TRUSTS AND ESTATES (COURT OF CLAIMS, FAILURE TO STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF THE COURT OF CLAIMS ACT IN THIS WRONGFUL DEATH CLAIM REQUIRED THAT THE CLAIM BE DISMISSED (SECOND DEPT))

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EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT).

The Second Department determined the writing and execution requirements for an out-of-court stipulation of settlement were not met by an e-mail sent by the defendant in a slip and fall case:

To be enforceable, a stipulation of settlement must conform to the criteria set forth in CPLR 2104 … . Where, as in the instant case, counsel for the parties did not enter into a settlement in open court, an “agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney” … . The plain language of CPLR 2104 requires that “the agreement itself must be in writing, signed by the party (or attorney) to be bound” … . An email message may be considered “subscribed” as required by CPLR 2104, and, therefore, capable of enforcement, where it “contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature” … .

Here, the email confirming the settlement agreement was sent by counsel for the party seeking to enforce the agreement, [defendant]. There is no email subscribed by the plaintiff, who is the party to be charged, or by her former attorney. In the absence of a writing subscribed by the plaintiff or her attorney, the settlement agreement is unenforceable against the plaintiff … . Kataldo v Atlantic Chevrolet Cadillac, 2018 NY Slip Op 03669, Second Dept 5-23-18

​CIVIL PROCEDURE (STIPULATION OF SETTLEMENT, EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/STIPULATION OF SETTLEMENT (EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/SETTLEMENT, STIPULATION OF (EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/CPLR 2014 (STIPULATION OF SETTLEMENT, EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/NEGLIGENCE (STIPULATION OF SETTLEMENT, EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))

BACKING INTO A PARKED CAR IS PRIMA FACIE EVIDENCE OF NEGLIGENCE, PLAINTIFF, WHO WAS INJURED WHEN THE PARKED CAR WAS PUSHED INTO HIM, ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a case remitted after reversal by the Ct. of Appeals, determined plaintiff was entitled to summary judgment in this vehicle accident case. Plaintiff was injured when a sanitation truck, which was backing up, slid on ice and hit a parked car. which in turn struck plaintiff. Initially the plaintiff’s motion for summary judgment was denied because the plaintiff did not demonstrate freedom from comparative fault. The Ct. of Appeals reversed, holding that plaintiffs do not need to demonstrate freedom from comparative fault to be entitled to summary judgment.  On remittal the First Department held that striking a parked vehicle is prima facie evidence of negligence and plaintiff’s summary judgment motion was granted:

It was Ramos’s [the driver] and Carter’s [the employee guiding the driver] responsibility to take into account weather and road conditions and to tailor their actions accordingly to avoid collisions … . The record demonstrates that the truck hit the parked car either because Ramos reacted to an abrupt hand signal from Carter and hit the brakes while he was driving on ice, causing a skid he could not abate, or because Ramos failed to adequately respond to Carter’s directives. Whether there were chains on the tires or not, defendant’s employees were obligated to maintain control of the truck and to avoid collisions with parked cars while backing up, and were negligent in failing to do so … . Rodriguez v City of New York, 2018 NY Slip Op 03634, First Dept 5-22-18

​NEGLIGENCE (BACKING INTO A PARKED CAR IS PRIMA FACIE EVIDENCE OF NEGLIGENCE, PLAINTIFF, WHO WAS INJURED WHEN THE PARKED CAR WAS PUSHED INTO HIM, ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT))/TRAFFIC ACCIDENTS (BACKING INTO A PARKED CAR IS PRIMA FACIE EVIDENCE OF NEGLIGENCE, PLAINTIFF, WHO WAS INJURED WHEN THE PARKED CAR WAS PUSHED INTO HIM, ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT))/PARKED CARS (NEGLIGENCE, BACKING INTO A PARKED CAR IS PRIMA FACIE EVIDENCE OF NEGLIGENCE, PLAINTIFF, WHO WAS INJURED WHEN THE PARKED CAR WAS PUSHED INTO HIM, ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT))

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